Deconstructing the Definition of ‘Disability’ Under the Employment Equity Act: Social Deconstruction

Abstract

The Employment Equity Act 55 of 1998 lists ‘disability’ as one of the grounds of unfair discrimination. In Chapter III of the Act, ‘people with disabilities’ are one of the designated groups and, thus, beneficiaries of affirmative action measures. This is the first part of a two-part article that seeks to contribute to the understanding of the definitional aspects of disability status under the Employment Equity Act. Using, in part, the decision of the Labour Court in IMATU v City of Cape Town as a pivot for discussion and drawing from disability theories and comparative law, the article teases out the judicial interpretation of disability status under the Employment Equity Act. A successful judicial interpretation of disability status, including the determination of the effect of mitigating measures under the Employment Equity Act must, perforce, take into cognisance the social construction of disability. Theoretical frameworks on the phenomenon of disability, and in particular the development of the ‘medical model’ and the ‘social model’ as paradigms for understanding the social, political, and cultural construction of disability offer courts rich insights into the understanding of the legal construction of disability, including the definitional construction of disability status under the Act.

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